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Vratney v. Precythe

United States District Court, E.D. Missouri, Eastern Division

September 3, 2019

ANNE L. PRECYTHE, et al., Defendants.



         This matter is before the Court on the motion of plaintiff Peter Wayne Vratney, II for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $1.70. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will dismiss plaintiffs complaint without prejudice.

         28 U.S.C. § 1915(b)(1)

         Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of the Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         In support of his motion to proceed in forma pauperis, plaintiff submitted an affidavit and a certified inmate account statement. (Docket No. 3). The account statement shows an average monthly deposit of $8.50. The Court will therefore assess an initial partial filing fee of $1.70, which is 20 percent of plaintiff s average monthly deposit.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must "accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to "accept as true any legal conclusion couched as a factual allegation").

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A "liberal construction" means that if the essence of an allegation is discernible, the district court should construe the plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8thCir. 2004) (stating that federal courts are not required to "assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint"). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is currently incarcerated at the Western Reception, Diagnostic and Correctional Center in St. Joseph, Missouri. At the time relevant to this complaint, however, he was an inmate at the Missouri Eastern Correctional Center in Pacific, Missouri. Plaintiff brings this pro se civil action pursuant to 42 U.S.C. § 1983. He names Anne L. Precythe, Alana Boyles, Warden Jennifer Sachse, Functional Unit Manager (FUM) K. Gelski, Correctional Officer M. Richtin, and Correctional Officer M. Tarrant as defendants. (Docket No. 1 at 3-4). The defendants are sued in both their individual and official capacities. (Docket No. 1 at 4).

         Plaintiff states that on April 6, 2018, Officer Tarrant conducted a routine wing tour, during which he witnessed plaintiff nonresponsive in his cell. According to plaintiffs grievance and grievance appeal response, three other inmates in plaintiffs cell were also nonresponsive.[1](Docket No. 1-3 at 2). A synthetic cannabinoid was located on one of the inmates, though not on plaintiff. (Docket No. 1-3 at 5). Officer Tarrant placed plaintiff in restraints and escorted him to medical, along with the other three inmates. (Docket No. 1 at 4; Docket No. 1-3 at 2).

         Plaintiff claims that medical staff "opined" that he was "coherent." (Docket No. 1 at 4). The medical staff also checked plaintiffs blood sugar, as he is a Type 1 diabetic. Plaintiff states that his blood sugar was "abnormally high." After the evaluation, Officer Tarrant escorted plaintiff to segregation for "being under the influence of an imitation [cannabinoid] substance." On April 12, 2018, Officer Richtin and Officer Tarrant "visited" him in the segregation unit, at which time Officer Richtin performed a conduct violation interview. (Docket No. 1 at 4-5). Officer Tarrant charged plaintiff with being under the influence of an imitation cannabinoid, in violation of Missouri Department of Corrections Rule 11.5. (Docket No. 1 at 5).

         Plaintiff asserts that he was charged based on a "visual dirty," and that at no "time between the time of the incident and the time that the violation was written was a specimen collected... to test for the presence of an imitation cannabinoid substance." He further states that he was not given an opportunity to provide a "specimen sample" for testing purposes.

         On April 17, 2018, plaintiff participated in a Disciplinary Action Hearing, presided over by FUM Gelski. Plaintiff alleges that the only evidence presented was Officer Tarrant's "observation/opinion." Following the hearing, FUM Gelski found plaintiff guilty of the conduct violation and sanctioned him accordingly. The report from the ...

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